Monday, October 12, 2015

Oral Argument in DIRECTV v. Imburgia: Arbitration Clauses in California, Again

The Supreme Court heard oral argument in DIRECTV v. Imburgia, No. 14-462, on October 6.  The issue is "Whether the California Court of Appeal erred by holding, in direct conflict with the Ninth Circuit, that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act."


Ronald Mann at SCOTUSBlog has an analysis here.  The transcript is here.

October 12, 2015 in Class Actions, Supreme Court Cases | Permalink | Comments (0)

Monday, October 5, 2015

Today’s SCOTUS Oral Argument in OBB Personenverkehr v. Sachs

The new Supreme Court Term kicked off today with oral argument in OBB Personenverkehr AG v. Sachs. The case involves a couple of issues regarding the Foreign Sovereign Immunities Act (FSIA). Those issues are interesting in their own right, but today’s argument (transcript here) also featured some notable exchanges on personal jurisdiction, forum selection clauses, and other civil procedure topics.



October 5, 2015 in Supreme Court Cases | Permalink | Comments (0)

Thursday, October 1, 2015

Happy October! SCOTUS Cert Grants of Interest (Bank Markazi; Americold; MHN)

Today the Supreme Court issued its much-anticipated order list from the end-of-summer “long conference.” It granted certiorari in a few cases that folks interested in civil procedure and federal courts will want to keep an eye on:

Bank Markazi v. Peterson (No. 14-770), from the Second Circuit, is a separation-of-powers challenge to a congressional statute involving the execution of a judgment against bonds held by the Central Bank of Iran. Here is the question presented by the petitioner:

This case concerns nearly $2 billion of bonds in which Bank Markazi, the Central Bank of Iran, held an interest in Europe as part of its foreign currency reserves. Plaintiffs, who hold default judgments against Iran, tried to seize the assets. While the case was pending, Congress enacted § 502 of the Iran Threat Reduction and Syria Human Rights Act of 2012, 22 U.S.C. § 8772. By its terms, that statute applies only to this one case: to “the financial assets that are identified in and the subject of proceedings in the United States District Court for the Southern District of New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518 (BSJ) (GWG).” Id. § 8772(b). “In order to ensure that Iran is held accountable for paying the judgments,” it provides that, notwithstanding any other state or federal law, the assets “shall be subject to execution” upon only two findings—essentially, that Bank Markazi has a beneficial interest in them and that no one else does. Id. § 8772(a)(1), (2). The question presented is:

Whether § 8772—a statute that effectively directs a particular result in a single pending case—violates the separation of powers.

Americold Logistics, LLC v. ConAgra Foods, Inc. (No. 14-1382), from the Tenth Circuit, involves how to determine the citizenship of a trust for purposes of diversity jurisdiction:

Petitioners Americold Logistics, LLC and Americold Realty Trust – a corporation and real estate investment trust, respectively – removed a case from Kansas state court to the United States District Court for the District of Kansas, asserting the parties were diverse. No party challenged the removal, and the District Court ruled on the merits of that litigation without addressing any issue relating to diversity jurisdiction. Likewise, neither party raised any jurisdictional challenge on appeal to the Tenth Circuit Court of Appeals.

The Tenth Circuit, however, sua sponte queried whether there was full diversity of citizenship among the parties. In particular, the judges challenged whether the citizenship of Americold Realty Trust, a business trust, should be determined by reference to its trustees’ citizenship, or instead by reference to some broader set of factors. This issue has deeply split courts across the country. Joining the minority of courts, the Tenth Circuit held the jurisdictional inquiry extends, at a minimum, to the citizenship of a trust’s beneficiaries in addition to its trustees’ citizenship. In this case, doing so destroyed diversity of citizenship among the parties.

The question presented by this petition is: Whether the Tenth Circuit wrongly deepened a pervasive circuit split among the federal circuits regarding whether the citizenship of a trust for purposes of diversity jurisdiction is based on the citizenship of the controlling trustees, the trust beneficiaries, or some combination of both.

MHN Government Services, Inc. v. Zaborowski (No. 14-1458), from the Ninth Circuit, is another case involving the relationship between the Federal Arbitration Act and state contract law. Here is the question presented by the petitioners:

The Federal Arbitration Act (“FAA”) provides that an arbitration agreement shall be enforced “save upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U.S.C. § 2. California law applies one rule of contract severability to contracts in general, and a separate rule of contract severability to agreements to arbitrate. The arbitration-only rule disfavors arbitration and applies even when the agreement contains an express severability clause. Its application in this case conflicts with binding precedent of this Court and with opinions of four other courts of appeals.

The question presented is whether California’s arbitration-only severability rule is preempted by the FAA.  

You can find coverage of today’s cert. grants from SCOTUSblog’s Lyle Denniston here.


October 1, 2015 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Thursday, September 17, 2015

Recent Papers on Article III Standing; More Academic Amici Favoring Respondent in Spokeo Case

In addition to Restitution and Remedies Scholars, two other groups of scholars filed amicus briefs in the Supreme Court in Spokeo, Inc. v. Robins on the side of Respondent:

Information Privacy Law Scholars 

Public Law Professors


Academics filed no amicus briefs in favor of Petitioner Spokeo. 


Two other articles on Article III standing have recently been posted on SSRN:

'Spooky Action at a Distance': Intangible Injury in Fact in the Information Age by Seth F. Kreimer of University of Pennsylvania Law School.  Abstract:

Two decades after Justice Douglas coined “injury in fact” as the token of admission to federal court under Article III, Justice Scalia sealed it into the constitutional canon in Lujan v. Defenders of Wildlife. In the two decades since Lujan, Justice Scalia has thrown increasingly pointed barbs at the permissive standing doctrine of the Warren Court, maintaining it is founded on impermissible recognition of "Psychic Injury." Justice Scalia and his acolytes take the position that Article III requires a tough minded, common sense and practical approach. Injuries in fact must be "tangible" "direct" "concrete" "de facto" realities in time and space free from spooky entities like "Psychic Injury."

Albert Einstein famously took the position that quantum mechanics could not be a proper and complete theory on the ground that "[P]hysics should represent a reality in time and space, free from spooky actions at a distance." The problem that ultimately overtook Einstein's argument was that experimental results vindicating quantum mechanics stubbornly continued to appear in the journals. The burden of this paper is to demonstrate that spooky "injuries in fact" involving information have stubbornly continued to appear in United States Reports. It demonstrates that the Court has regularly adjudicated the controversies of the information age: disputes regarding illicit acquisition of information, denial of access to information, improper exposure to information and intellectual property. And it argues that the Court will continue to do so.

These adjudications fatally undermine an account of Article III that insists on "direct" "tangible" and "palpable" injuries to physical or economic interests as the price of admission to the federal courthouse, and profoundly alter notions of "particularized" and "imminent" injury. Information is by nature intangible, and information plays an increasingly dominant role in our social, economic, political and cultural life. Information is largely non-rivalrous and non-excludable. Violations of duties regarding information thus regularly result in injuries that are "general" rather than "particularized." And, with the advent of the Internet, informational harm is pandemically "imminent": information can be spookily and instantaneously "present" at opposite ends of the country, or of the globe.


Article III Standing for Private Plaintiffs Challenging Greenhouse Gas Regulations by Bradford C. Mank of University of Cincinnati Law School.  Abstract:

An important unresolved question is whether non-state plaintiffs have standing under Article III of the U.S. Constitution to sue in federal courts in climate change cases. In Massachusetts v. EPA, the Supreme Court held a state government could sue the U.S. government to address climate change issues, and suggested, but did not decide, that private litigants might have lesser rights than states. In Washington Environmental Council v. Bellon, the Ninth Circuit held that private groups did not have standing to challenge Washington State’s failure to regulate greenhouse gas (GHG) emissions from five oil refineries, and implied that private plaintiffs may never bring climate change suits because such suits are generalized grievances and the Massachusetts exception for GHG suits applies only to states. However, dissenting from the Ninth Circuit’s denial of a rehearing en banc, three judges argued that the panel’s opinion was overly broad in interpreting the Massachusetts decision to deny standing rights to all non-state GHG plaintiffs. In recent district court decisions, two different federal judges concluded that private plaintiffs may have Article III standing to challenge the government’s regulation of climate change or greenhouse gases. In Center for Biological Diversity v. EPA, the Western District of Washington held the plaintiff suffered concrete standing injuries from the defendant EPA’s approval of Washington’s and Oregon’s decisions not to identify any waters experiencing ocean acidification as impaired under the Clean Water Act (CWA). In distinguishing the Washington Environmental Council decision, the district court concluded that the plaintiffs demonstrated local GHG impacts, and local mitigation efforts could partially redress the injuries to their members. In Murray Energy Corporation v. Gina McCarthy, Administrator of EPA, the Northern District of West Virginia concluded that that the plaintiffs sufficiently established that the EPA violated its duty under the Clean Air Act (CAA) to examine the employment impacts of its enforcement and regulations under the Act on employment in the coal mining industry to have standing. The Murray decision’s focus on employment injuries could be used to provide standing in a challenge to GHG regulations. While there is an argument that expanding standing to non-state GHG plaintiffs could flood the federal courts with too many suits, courts can manage the number of climate change suits by requiring a meaningful demonstration of a connection between GHG emissions and harms to the plaintiffs, and by giving substantial deference to reasonable government regulatory policies in this area.

September 17, 2015 in Recent Scholarship, Standing, Supreme Court Cases | Permalink | Comments (0)

Monday, September 14, 2015

Scholars File Amicus Brief in Spokeo Case Supporting Respondent Robins

On September 8, 2015, ten current or former law professors filed their Brief of Restitution and Remedies Scholars as Amici Curiae in Support of Respondent. 


The brief states (at pp. 1-2):


If this Court were to adopt petitioner’s proposed rule — that a plaintiff who suffers no harm beyond the loss of his legal rights has no standing to sue — it could wreak havoc with the law of restitution and unjust enrichment, barring many long-established causes of action from federal courts. This important body of law long predates the American founding and serves essential functions, especially in private law but in parts of public law as well.


These amici take no position on the underlying statutory claim.




Petitioner’s sweeping and ill-defined argument that no plaintiff can have standing without proof of “concrete harm” is aimed at claims for statutory minimum damages. The Court should reject this frontal assault on statutory remedies. But whatever the Court does with respect to statutory damages, it should take care not to inadvertently sweep away much of the law of restitution.


The ten individual amici are Mark P. Gergen, Andrew Kull, Douglas Laycock, Colleen P. Murphy, Phil C. Neal, Doug Rendleman, Caprice Roberts, Chaim Saiman, Emily L. Sherwin, and Michael Traynor.  Nine of the ten amici participated in drafting the Restatement (Third) of Restitution and Unjust Enrichment as Reporter, Adviser, or on the Members Consultative Group.

September 14, 2015 in Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Wednesday, September 9, 2015

Disinformation About Standing and the Spokeo Case

Oh, why did I allow myself to be lured by SCOTUSBlog's cite to a blog post about Spokeo, Inc. v. Robins in the "Liberty Blog" of the Pacific Legal Foundation?  


The post manages, in five short paragraphs, to put words in Linda Greenhouse’s mouth, to mischaracterize the complaint in Spokeo, to flip constitutional standing on its head, and to assert that wealthier is always better.


The post, written by Wen Fa, takes issue with a recent New York Times op-ed by Ms. Greenhouse that primarily asserted that some conservative judges have an expansive reading of the standing doctrine when it suits them for ideological purposes, as in Fisher v. University of Texas, the affirmative-action case currently pending before the Supreme Court.  Ms. Greenhouse only mentions Spokeo in the last paragraph, which states in full:


Also on the court’s docket for its new term is a fascinating case that raises the question of whether Congress can confer standing by enacting a law that gives people the right to sue for a technical legal violation that might not amount to the “injury in fact” — actual harm — that would otherwise be necessary to sustain a lawsuit in federal court. The statute at issue in this case, Spokeo, Inc. v. Robins, is the Fair Credit Reporting Act. Similar citizen-suit provisions are common among federal statutes, with this case representing the tip of a very big iceberg. We’ll soon learn more about who these days stands for standing.


The PLF blog post claims that Ms. Greenhouse’s op-ed “lamented the likely result of” Spokeo.  As anyone can see from the above quote from the op-ed, she did not even hint at “the likely result” of Spokeo, let alone “lament” it. 


Then, PLF lets loose with this doozy of distortion:


In Spokeo v. Robins, PLF argues [presumably, the author means in the amicus brief filed by Pacific Legal Foundation] that Article III injury can’t just be created by congressional fiat, and a plaintiff who sued a website for listing him as wealthier and better educated has no standing to bring his case in federal court. The Court seems poised to adopt our argument . . . .


It is not true that Mr. Robins is just suing Spokeo “for listing him as wealthier and better educated.”  That is not “all” that Mr. Robins has alleged, factually or legally.  But PLF continues: “All Robins has to complain about . . . is that a person who happens to stumble upon his Spokeo page may think that he has more money and more degrees than he does in reality. But those are desirable traits.”  (emphasis added)


Actually, here’s what the First Amended Complaint alleges:


31. The consumer report that Spokeo has compiled about Plaintiff Robins correctly describes his basic identifying information such as address, neighborhood, and siblings’ names; however, for an extensive period of time most of the other information was incorrect. For example, a picture Defendant reported to be an image of Robins was not in fact Plaintiff, the profile incorrectly stated he was in his 50s, that he was married, that he was employed in a professional or technical field, and that he has children.

32. While some changes have been made to Plaintiff’s profile, it continues to represent that he has a graduate degree, that his economic health is “very strong,” and that his wealth level is in the “Top 10%.”

33. Plaintiff has no way of verifying the “economic health” rating Defendant ascribes to him, and denies that his “wealth level” is accurately described.

34. Defendant’s inaccurate report is particularly harmful to Plaintiff in light of the fact that he is currently out of work and seeking employment. In fact, Mr. Robins has been actively seeking employment throughout the time that Spokeo has displayed inaccurate consumer reporting information about him and he has yet to find employment.


The complaint also alleges that Mr. Robins has suffered actual harm to his employment prospects, to his finances, and “in the form of anxiety [and] stress … about his diminished employment prospects.”


In the context of what Mr. Robins alleges, which is that he is trying to find a job, it would, in fact, usually be worse for a prospective employer to think you’re in your 50s than in your 20s, 30s, or 40s.  Age discrimination does exist, and employers typically pay younger employees less than older employees.  Moreover, depending on the job, it might be worse for a prospective employer to think you’re married with children rather than single and childless.  Married parents have more work/life conflicts and family obligations than single people without kids.  And if you’re trying to get that first entry-level position as a college grad, it very well could be worse for a prospective employer to think you hold a graduate degree and are in the “top 10%” of people in terms of wealth.  The employer might think that you’re overqualified for the position, have a strong sense of entitlement, or expect a higher salary than they’re prepared to offer.  Finally, if you look like George Clooney, it would generally be better if a prospective employer doesn't see a photograph purporting to be you that looks like Marty Feldman (unless, of course, the prospective employer is casting for Young Frankenstein).  There are studies showing that good-looking people get hired more easily and often than unattractive people.     


And those are just the facts that PLF has got wrong.  In terms of legal claims, the complaint alleges that, in violation of the FCRA, Spokeo has not (1) adopted reasonable measures to ensure the accuracy of its consumer reports, (2) provided any of the statutorily-required notices to furnishers or users of information contained in the reports, or (3) provided consumers with a toll-free telephone number to request annual file disclosures.


What about PLF’s proclamation that “Article III injury can’t just be created by congressional fiat”?  Actually, Congress can create new statutory rights, the violation of which will suffice to grant standing, and Congress has done so hundreds of times and for hundreds of years.  As mentioned in respondent Robins' merits brief, the first Congress in 1790 authorized statutory damages for a copyright violation without proof of actual loss.  And Justice Story in 1838, speaking of a common-law property right, stated, “Actual, perceptible damage is not indispensable as the foundation of an action. The law tolerates no farther inquiry than whether there has been the violation of a right. If so, the party injured is entitled to maintain his action for nominal damages, in vindication of his right, if no other damages are fit and proper to remunerate him.”  Webb v. Portland Mfg. Co., 29 F. Cas. 506, 508 (C.C.D. Me. 1838).  Justice Story understood this principle “from [his] earliest reading” and “considered it laid up among the very elements of the common law.”


Literally hundreds of state and federal statutes create private rights of action to encourage compliance with laws meant to protect consumers, workers, and the environment.  Many of these statutes authorize statutory damages in recognition that actual damages can sometimes be difficult to prove and to incentivize private plaintiffs to enforce the law. 


Spokeo and its seventeen business amici recently conceived a new way to neutralize any statute anywhere that authorizes statutory damages.  That is: tar the private right of action with the newfangled pejorative “injury-in-law” (the better to distinguish it from the constitutionally-required “injury-in-fact”) and claim that violation of the statute is “technical,” “trivial,” or not a “real-world” injury – so not good enough for standing. 


The sheer audacity of this argument is breathtaking.  The vast majority, if not all, of the Supreme Court’s Article III standing cases involve a plaintiff suing a governmental department, agency, or official, asking a court to tell that governmental actor what to do.  It is in that sense that the Court has repeatedly stated that the primary concern of the Article III standing doctrine is separation of powers – in most cases, to keep the courts out of the executive branch. 


The Spokeo case is a case between private parties, not a case against the government.  Here, Spokeo’s newfangled standing doctrine would tear down a pretty large section of the separation-of-powers wall.  It would allow federal judges to eviscerate laws that were validly enacted by the legislative branch, by refusing to countenance the violation of those laws as “injury.”  And it would nullify statutory damages by requiring proof of actual damages in order to be entitled to statutory damages.


How, exactly, would it uphold separation of powers if judges refuse to honor statutes they disagree with?  And who, exactly, would have standing to sue under the FCRA, according to Spokeo and PLF, if Mr. Robins doesn’t? 


The more I look into this, the bigger I think this case is.           


To get back to PLF’s blog post: why does PLF think “the Court seems poised to adopt [its] argument”?  Does it have inside information that five justices are ready to effectively repeal an assortment of federal statutes?

September 9, 2015 in Standing, Supreme Court Cases | Permalink | Comments (0)

Thursday, September 3, 2015

Free CLE for ABA Members: 2015-2016 Supreme Court Preview

The next in the American Bar Association’s free Continuing Legal Education for its members will be a program entitled Supreme Court Preview: The 2015-2016 Term.  The webinar will be on Monday, September 21, 2015, from 1:00 PM - 2:30 PM ET. 


The speaker will be Adam Liptak, Supreme Court Correspondent for the New York Times.


The program offers 1.5 hours of CLE credit.  It is free for ABA members and $195 for non-members. 

September 3, 2015 in Conferences/Symposia, Supreme Court Cases | Permalink | Comments (0)

Wednesday, September 2, 2015

Possible "Coming Liberal Disaster" on Class Actions, Too

Howard Bashman at How Appealing brought attention to a post by Jeffrey Toobin in The New Yorker about a possible upcoming “disaster” for liberals in the October 2015 term in the Supreme Court.  Mr. Toobin included affirmative action, abortion, and public-employee unions in “the subjects before the Justices [that] appear well suited for liberal defeats.” 


Mr. Toobin could also have included private-law class actions.  The Court has granted cert in four cases that could hobble class actions well before the Civil Rules Advisory Committee moves forward in its consideration of the topic.  As we’ve previously reported (but not all in one post, if memory serves), these four cases are:

Continue reading

September 2, 2015 in Class Actions, In the News, Standing, Supreme Court Cases | Permalink | Comments (0)

Wednesday, July 15, 2015

Wasserman on Mixed Signals on Summary Judgment

Howard Wasserman has posted on SSRN  his article, Mixed Signals on Summary Judgment, published in Michigan State Law Review.


This essay examines three cases from the Supreme Court’s October Term 2013 addressing the standards for summary judgment. In one case, the Court affirmed summary judgment against a civil-rights plaintiff, in a continued erroneous over-reliance on the certainty of video evidence. In two other cases, the Court rejected the grant of summary judgment against civil-rights plaintiffs, arguably for the first time in quite a while. This essay unpacks the substance and procedure underlying all three decisions and considers the effect of the three cases and what signals they send to lower courts and litigants about the proper approach to summary judgment, particularly in civil-rights cases involving video evidence.

July 15, 2015 in Federal Rules of Civil Procedure, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Wednesday, July 1, 2015

Post-Obergefell Update from Alabama: Federal Injunction Now in Effect

In the wake of last week’s U.S. Supreme Court decision in Obergefell, federal judge Callie Granade issued an order today confirming that her earlier classwide preliminary injunction in the Strawser case is “now in effect and binding on all members of the Defendant Class.”

According to one report, attorneys for the Strawser plaintiffs will be seeking contempt rulings against probate judges who issue marriage licenses to opposite-sex couples but not same-sex couples.


July 1, 2015 in Class Actions, Current Affairs, Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, June 29, 2015

SCOTUS Cert. Grant in Musacchio v. United States

There are some interesting procedural issues in Musacchio v. United States, a case for which the Supreme Court granted certiorari today. It presents two questions:

(1) Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment; and

(2) Whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal.

You can find all of the cert-stage briefing, and keep track of the merits briefs as they come in, at SCOTUSblog.




June 29, 2015 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (1)

Saturday, June 27, 2015

The Obergefell Aftermath in Alabama

By now readers are surely aware of yesterday’s landmark Supreme Court decision in Obergefell v. Hodges, which held by a 5-4 vote that the U.S. Constitution does not permit states to bar same-sex couples from marriage on the same terms as are accorded to opposite-sex couples. Despite this ruling, it is not yet clear how things will unfold in Alabama—or in other states that have not recognized same-sex marriage but are not directly involved in the Obergefell case (which involves the four states in the Sixth Circuit—Kentucky, Michigan, Ohio, and Tennessee).

According to early reports, many Alabama counties began issuing marriage licenses to same-sex couples shortly after Justice Kennedy announced the Obergefell decision (some of these counties had already done so earlier but stopped after the March 3 ruling from the Alabama Supreme Court). Other Alabama counties are still not issuing marriage licenses to same-sex couples or have stopped issuing marriage licenses altogether.

So where do things stand on the Alabama judicial front? Federal judge Callie Granade has already issued a class-wide preliminary injunction against all Alabama probate judges, ordering that they may not enforce Alabama’s ban on same-sex marriage. She stayed that injunction “until the Supreme Court issues its ruling” in Obergefell, but as of this post she has taken no further action.

Meanwhile the Alabama Supreme Court’s mandamus ruling, which orders Alabama probate judges not to issue marriage licenses to same-sex couples, remains. The Alabama Supreme Court has yet to rule on a motion filed earlier this month by groups opposing same-sex marriage, which had sought “clarification and reaffirmation” of the mandamus ruling in the wake of Judge Granade’s class-wide injunction. Alabama Chief Justice Roy Moore was in the news once again shortly after Obergefell came down, asserting the decision was “even worse” than Plessy v. Ferguson. 

The upshot is, we’re likely to see more action in both state and federal court before things get resolved. Stay tuned.




June 27, 2015 in Class Actions, Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (1)

Monday, June 8, 2015

SCOTUS Cert. Grant on Class Actions: Tyson Foods v. Bouaphakeo

Today the Supreme Court granted certiorari in Tyson Foods, Inc. v. Bouaphakeo (No. 14-1146. The questions presented are:

(I) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample.

(II) Whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.

You can find all of the cert-stage briefing, and keep track of the merits briefs as they come in, at SCOTUSblog.




June 8, 2015 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Wednesday, June 3, 2015

Alabama Same-Sex Marriage Litigation: Back to the Alabama Supreme Court?

Two weeks ago, federal district judge Callie Granade certified a class action in the Strawser case and issued a class-wide injunction forbidding enforcement of Alabama’s ban on same-sex marriage. She stayed the injunction, however, until the U.S. Supreme Court issues its ruling in Obergefell v. Hodges, which is expected later this month.

In the meantime, two groups opposed to same-sex marriage have returned to the Alabama Supreme Court, seeking “clarification and reaffirmation” of that court’s earlier mandamus ruling ordering Alabama probate judges not to issue marriage licenses to same-sex couples. Yesterday’s motion asks the Alabama Supreme Court “to enter an order clarifying and reaffirming the continued effectiveness of the Mandamus Order despite entry of the conflicting Strawser Class Injunction.”

Stay tuned.



June 3, 2015 in Class Actions, Current Affairs, Federal Courts, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Thursday, May 21, 2015

Alabama Same-Sex Marriage Litigation Update: Federal Judge Grants Class Certification and Issues (but Stays) Class-Wide Injunction

Things had been fairly quiet in the litigation over Alabama’s same-sex marriage ban (here’s where things stood back in March). Today, U.S. District Judge Callie Granade made two important rulings in the Strawser case. In one order, she certified both a plaintiff class and a defendant class under Rule 23(b)(2). She wrote:

Plaintiffs’ motion to certify a Plaintiff Class consisting of all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama’s laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages is GRANTED.


Plaintiffs’ motion to certify a Defendant Class consisting of all Alabama county probate judges who are enforcing or in the future may enforce Alabama’s laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages is GRANTED.

In another order, Judge Granade concluded—yet again—that Alabama’s ban on same-sex marriage is unconstitutional. Accordingly, she granted the plaintiff’s motion for a preliminary injunction; but she also ordered that “because the issues raised by this case are subject to an imminent decision by the United States Supreme Court in Obergefell v. Hodges and related cases, the above preliminary injunction is STAYED until the Supreme Court issues its ruling.”

Continue reading

May 21, 2015 in Class Actions, Current Affairs, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, May 18, 2015

SCOTUS Cert Grant on Article III, Mootness, Class Actions & Sovereign Immunity

Today the Supreme Court granted certiorari in Campbell-Ewald Company v. Gomez, which presents the following questions:

1. Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim.

2. Whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified.

3. Whether the doctrine of derivative sovereign immunity recognized in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), for government contractors is restricted to claims arising out of property damage caused by public works projects.

You can see all of the cert-stage briefing, and keep track of the merits briefs as they come in, at SCOTUSblog.



May 18, 2015 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Tuesday, May 5, 2015

SCOTUS Decision in Bullard: Finality & Appealability in Bankruptcy Proceedings

Yesterday the Supreme Court issued a unanimous decision in Bullard v. Blue Hills Bank. The opinion, authored by Chief Justice Roberts, begins:

Chapter 13 of the Bankruptcy Code affords individuals receiving regular income an opportunity to obtain some relief from their debts while retaining their property. To proceed under Chapter 13, a debtor must propose a plan to use future income to repay a portion (or in the rare case all) of his debts over the next three to five years. If the bankruptcy court confirms the plan and the debtor successfully carries it out, he receives a discharge of his debts according to the plan.

The bankruptcy court may, however, decline to confirm a proposed repayment plan because it is inconsistent with the Code. Although the debtor is usually given an opportunity to submit a revised plan, he may be convinced that the original plan complied with the Code and that the bankruptcy court was wrong to deny confirmation. The question presented is whether such an order denying confirmation is a “final” order that the debtor can immediately appeal. We hold that it is not.

In the opinion, Roberts notes some of the differences between appealability in bankruptcy proceedings and in other kinds of federal litigation:

In ordinary civil litigation, a case in federal district court culminates in a “final decisio[n],” 28 U. S. C. §1291, a ruling “by which a district court disassociates itself from a case,” Swint v. Chambers County Comm’n, 514 U. S. 35, 42 (1995). A party can typically appeal as of right only from that final decision. This rule reflects the conclusion that “[p]ermitting piecemeal, prejudgment appeals . . . undermines ‘efficient judicial administration’ and encroaches upon the prerogatives of district court judges, who play a ‘special role’ in managing ongoing litigation.” Mohawk Industries, Inc. v. Carpenter, 558 U. S. 100, 106 (2009) (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 374 (1981)).

The rules are different in bankruptcy. A bankruptcy case involves “an aggregation of individual controversies,” many of which would exist as stand-alone lawsuits but for the bankrupt status of the debtor. 1 Collier on Bankruptcy ¶5.08[1][b], p. 5–42 (16th ed. 2014). Accordingly, “Congress has long provided that orders in bankruptcy cases may be immediately appealed if they finally dispose of discrete disputes within the larger case.” Howard Delivery Service, Inc. v. Zurich American Ins. Co., 547 U. S. 651, 657, n. 3 (2006) (internal quotation marks and emphasis omitted). The current bankruptcy appeals statute reflects this approach: It authorizes appeals as of right not only from final judgments in cases but from “final judgments, orders, and decrees . . . in cases and proceedings.” §158(a).

Nonetheless, a court’s decision to reject a repayment plan but to give the debtor a chance to submit a revised plan does not qualify for an immediate appeal. Roberts explains:

Denial of confirmation with leave to amend, by contrast, changes little. The automatic stay persists. The parties’ rights and obligations remain unsettled. The trustee continues to collect funds from the debtor in anticipation of a different plan’s eventual confirmation. The possibility of discharge lives on. “Final” does not describe this state of affairs. An order denying confirmation does rule out the specific arrangement of relief embodied in a particular plan. But that alone does not make the denial final any more than, say, a car buyer’s declining to pay the sticker price is viewed as a “final” purchasing decision by either the buyer or seller. “It ain’t over till it’s over.”




May 5, 2015 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Wednesday, April 29, 2015

Interesting SCOTUS Cert. Petition on Summary Judgment

Today the Supreme Court wrapped up its oral arguments for the Term. There are lots of cases still to be decided, of course. And the Court should be taking action this week (Friday is the deadline) on the latest batch of proposed amendments to the Federal Rules of Civil Procedure.

Also in the coming weeks, the Court will be considering an interesting petition for certiorari out of the Seventh Circuit on summary judgment. Estate of Brown v. Thomas (No. 14-1139) presents an important question that federal courts have been struggling with ever since Celotex and the 1986 summary judgment trilogy:

What initial burden does Fed. R. Civ. P. 56 impose on a moving party that seeks summary judgment on the ground that the non-moving party cannot prove its case?

Here are the cert. stage briefs, and here is the docket. The case does not appear to be calendared for conference yet, but that will likely happen in May.



April 29, 2015 in Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (4)

Monday, April 27, 2015

Today’s SCOTUS Cert Grant on Article III Standing: Spokeo v. Robins

The Supreme Court granted certiorari today in Spokeo, Inc. v. Robins, which presents the question:

Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.

The Court granted cert. notwithstanding an invited brief from the Solicitor General arguing against review. That brief explained:

The court of appeals held that respondent had established Article III standing to sue petitioner “for publishing inaccurate personal information about [respondent]” because petitioner allegedly had violated respondent’s “statutory rights” protecting his “personal interests in the handling of his credit information.” Pet. App. 1a, 8a. The court below correctly concluded that the publication of such false information is a cognizable Article III injury.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.



April 27, 2015 in Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Wednesday, April 22, 2015

SCOTUS Decision in Wong (& June): Equitable Tolling & the Federal Tort Claims Act

Today the Supreme Court issued its decisions in United States v. Wong and United States v. June. As covered earlier, the cases address whether two time limits contained in the Federal Tort Claims Act are subject to equitable tolling. (Although Wong and June were not formally consolidated, the Court explains in footnote 1 that “we address them together because everyone agrees that the core arguments for and against equitable tolling apply equally to both of §2401(b)’s deadlines.”)

It’s a 5-4 split. Once again, the Justices examine—and disagree about—whether a statutory time limitation is “jurisdictional.” Justice Kagan writes the majority opinion, joined by Justices Kennedy, Ginsburg, Breyer and Sotomayor. Here’s the opening paragraph (emphasis added):

The Federal Tort Claims Act (FTCA or Act) provides that a tort claim against the United States “shall be forever barred” unless it is presented to the “appropriate Federal agency within two years after such claim accrues” and then brought to federal court “within six months” after the agency acts on the claim. 28 U. S. C. §2401(b). In each of the two cases we resolve here, the claimant missed one of those deadlines, but requested equitable tolling on the ground that she had a good reason for filing late. The Government responded that §2401(b)’s time limits are not subject to tolling because they are jurisdictional restrictions. Today, we reject the Government’s argument and conclude that courts may toll both of the FTCA’s limitations periods.

Justice Alito writes a dissenting opinion, joined by Chief Justice Roberts and Justices Scalia and Thomas. He argues that these limitations are jurisdictional and create an “absolute bar” that “is not subject to equitable tolling.”



April 22, 2015 in Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)